BEFORE:

HON’BLE MR. SUBHASH CHANDRA, PRESIDING MEMBER

HON’BLE DR. SADHNA SHANKER, MEMBER

For the Appellant                Mr Rajeev Sagar, Advocate (VC)    

For the Respondents           Mr Achin Mittal and Mr Sandeep Kataria

                                       Advocates for R 1 & 2

                                       NONE for R 3

ORDER

PER SUBHASH CHANDRA

1.      This appeal under Section 58 (1)(a)(iii) read with Section 51(4) of the Consumer Protection Act, 2019 (in short, the ‘Act’) read with Section 151 CPC has been filed challenging the order dated 21.09.2021 in EA No. 474 of 2019 in Consumer Complaint No. 50 of 2018 of the Punjab State Commission Dispute Redressal Commission, Chandigarh.

2.      We have heard the learned counsels for the parties and perused the records carefully.

3.      Briefly put, the relevant facts of the case are that the appellant had booked a flat in the project “Taj Towers” being developed and executed by the respondents in Mohali. Unit No. 704, 7th Floor, Pictor Tower, Pearls City, Mohali was allotted for a consideration of Rs 65,37,000/-. Appellant filed Consumer Complaint No. 50 of 2018 under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 before the State Commission seeking refund of the amount deposited towards the consideration of Rs 59,25,933/- along with Rs 27,41,796/- as interest @ 16% per annum from the date of payment till 22.01.2018 and Rs 86,67,729/- as further interest @16% per annum from 22.01.2018 onwards along with Rs 3,00,000/- as compensation on account of harassment and Rs 1,00,000/-  as litigation costs. The complaint was allowed by order dated 03.05.2018 directing the respondents/Judgment Debtors to deliver possession of the flat complete in all respects within 45 days along with Completion and Occupation Certificates from the competent authority along with interest on the amount deposited (Rs 59,25,933/-) @ 12% per annum with effect from 01.01.2017 and on deposits after 01.01.2017 from the respective dates of deposit till the date of actual delivery of possession. Opposite Party was also directed to pay Rs 1,00,000/- as compensation for harassment and mental agony including cost of litigation. In case of failure to deliver possession within the stipulated, the opposite party was directed to refund the entire deposited amount with interest at 12% per annum from the respective dates of deposit till the date of actual payment along with Rs 1,00,000/- as compensation for harassment, mental agony and cost of litigation.

4.      Decree Holder filed EA No. 420 of 2018 under Section 27 of the Act before the State Commission. However, on the basis of an order dated 21.12.2018 in FA 2227 of 2018, this Commission stayed the order dated 03.05.2018 and directed the Judgment Debtors to refund the entire principal amount to the Decree Holder. Based on this order, the principal amount was refunded by the Judgment Debtor. FA 2227 of 2018 was disposed of finally on 29.04.2019 directing payment of compensation in the form of simple interest @ 10% from the respective dates of payment till date of refund with Rs 25,000/ as litigation cost to be paid within three months.

5.      The Judgment Debtors did not comply with this order and therefore a sum of Rs 26,87,222/- with interest from the date of deposit till realization and litigation cost remained outstanding according to the appellant. EA No. 474 of 2019 was filed praying for directions for the deposit of the said amount with interest @ 10% per annum from the respective dates of deposit till realization with litigation costs. Cheques issued by the JD were dishonoured. A Miscellaneous Application (No. 41 of 2021) was filed by the JDs before this Commission for modification and clarification of order dated 21.12.2018 which was disallowed. It was directed that in case of refund of entire amount deposited, the question of deducting of tax did not arise and therefore no direction can be issued for refund of statutory dues as the possession of the flat had not been handed over.

6.      The State Commission in EA 474 of 2019 held that there was a difference in the calculation between the parties on account of the service tax. While it was contended by the Judgment Debtor that the entire amount stood paid to the Decree Holder and service tax was not payable, the State Commission held, in the light of the judgment of the Hon’ble Supreme Court in Vijay Gupta Vs. The Estate Officer (H), GMADA in Civil Appeal No. 6060 of 2016 with Civil Appeal No. 10180 of 2016 decided on 20.02.2019, that service tax was a statutory due and the same was not required to be refunded in case it had been deposited. It was also held that the difference in calculations was on account of the service tax.  Therefore, it was held that the decretal amount stood paid and nothing survived in the matter. Accordingly, the EA was disposed of with liberty to the Decree Holder to avail appropriate remedies in case there was any difference in the calculation after reconciliation of accounts.

7.      Appellants case is that EA 474 of 2019 arising from CC 50 of 2018 had been disposed of by the State Commission without the decree being satisfied and that since the JD did not prefer an appeal against the order dated 22.02.2021 of the NCDRC in FA 2227 of 2018, the order had attained finality. It was contended that the State Commission's order dated 21.09.2021 was incorrect and erroneous. Therefore, it was urged that it be set aside and EA 474 of 2019 be restored to its original position before the State Commission.

8.      Per contra, the respondent contended that the only issue in the matter related to the payment of the difference on account of service tax which had not been refunded since it was a statutory due. It was argued that the State Commission, despite its order dated 21.09.2021, had rightly held that statutory dues were not to be refunded as held in Vijay Gupta (supra). Therefore, it was submitted that as on 04.01.2019 it had paid the total decretal amount in pursuance of order dated 03.05.2018 in CC 50 of 2018 which was also admitted by the appellant. In FA 2227 of 2018 filed by the appellant before this Commission, order dated 29.04.2019 had also observed that the decretal amount had already been paid by the Respondent/Judgment Debtor while disposing of the FA. It is contended that EA 420 of 2018 was also disposed off by the State Commission as infructuous. It was submitted that it was admitted by the appellant that the Respondent/Judgment Debtor had paid, in addition to the principal amount of Rs 59,25,933/-, a sum of Rs 19,00,000/- to the appellant. It was therefore contended that order dated 21.09.2021 in EA 474 of 2019 by the State Commission be upheld and the present appeal be dismissed.

9.      From the above it is manifest that the only issue in this matter is the quantum of statutory dues claimed by the appellant on the amount deposited by it towards the sale consideration of the flat as per the impugned order.

10.    There is no dispute with regard to the receipt of Rs 59,25,933/- which was acknowledged by the appellant to have been received. The appellant has admitted the receipt of Rs 19,00,000/- as interest @ 10% as awarded vide order dated 29.04.2019. As regards the payment of statutory dues the contention of the appellant has been countered by the respondent/JD on the basis of the ratio laid down by the Hon’ble Supreme Court in Vijay Gupta (supra) which had held as under:

Insofar as the appeal of GMADA is concerned, we are of the view that the NCDRC was not justified in directing refund of the service tax. The dues on account of service tax are statuary dues. Hence, there was no reason to issue a direction for refund of the statuary dues. Similarly, since the buyer has already been paid interest @ 8% per annum compounded annually, a further direction for payment of litigation charges and compensation was not required.

11.    The appellant has limited the appeal to only the issue of statutory dues which it claims has been deducted unfairly and unjustly by the Respondent/Judgment Debtor. In view of the judgment of the Hon’ble Supreme Court in Vijay Gupta (supra), we find no reason to disturb the findings of the State Commission. The appeal execution No. 116 of 2021 is found to be without merits and is accordingly dismissed.

12.    In the circumstances of the case, there shall be no order as to costs. Pending IAs, if any, stand disposed of with this order.